31 October 2011

Machiavelli seemed the obvious author to think of when Gaddafi’s violent death in Libya was reported. Although there still appears to be a popular appetite for brutal tyrannicide, the Italian statesman’s prescription that the incoming Prince should obliterate the entire ruling dynasty of his predecessors if he is to be secure, seems more likely to prompt pangs of conscience than the general British twingelessness that accompanied the dictator’s killing. Having revisited the Prince, I went back to Machiavelli’s less well-known work, the Discourses on Livy, which is similarly concerned with the getting and holding of power, though speaks more directly to the predicaments of republics than principalities. While I’d baulk at any simple reading-across from Machiavelli to contemporary Scottish nationalism, I was particularly struck by the resonances of the following passage. While despots and tyrants should “renovate” everything in their new fief, upending hierarchies, dispersing populations, shattering and reshaping institutions, for those who do not seek a tyrannical sway, Machiavelli contends that…

“He who desires or proposes to change the form of government in a state and wishes it to be acceptable and to be able to maintain it to everyone’s satisfaction, must needs retain at least the shadow of its ancient customs, so that institutions may not appear to its people to have been changed, though in point of fact the new institutions may be radically different from the old ones. This he must do because men in general are as much affected by what a thing appears to be as by what it is, indeed they are frequently influenced more by appearances than by reality.”

The quotation scratched an itch of mine which I’m still attempting adequately to articulate. I thought I’d sketch my twinge here, and see what you all make of it. Given the SNP leadership’s now longstanding gradualist independence strategy, one wonders if Angus Robertson or Alex Salmond keeps a little copy of Machiavelli tucked inside his coat pocket. Whether it is the retention of the monarchy, or the idea that an independent Scotland should retain a unicameral parliament elected on a proportional basis, or remain in the EU, or retain pounds sterling, independence is being advanced – at least by the SNP – on the thesis of “minimal difference”. Adopting the gradual politics of the patient salami-slicer, the project is by soft degrees to narrow the gap between independence and the powers already accrued to devolved institutions. Squeezing a yawning political chasm into a slender fissure, ultimately this gradualism envisages that the electorate will be asked to make nothing like a leap towards independence. Step by step. Hop skip jump. Just a little thing, in the end. This approach wisely recognises human caution, with its concern for things practically realised over the abstractly appealing. But there’s a snag; at least for contemporary exponents of this sort of gradualist strategy. Unless something decidedly unexpected happens to the final Scotland Bill, in 2011 and in 2014 and 2015, the Scottish electorate will be invited to take nothing like the last sedate step envisaged here.

That being the case, I find myself wondering, what are the political limits of this nationalism of “minimal difference”, in circumstances where a gradualist-little-step idea of independence is simply implausible? As David Torrance notes in the revised second edition of his biography of Alex Salmond, writing about SNP ideological (in)coherence…

“The unifying factor was a belief in (varying degrees of) independence, but many leasing proponents of that ‘big idea’ held different hopes and aspirations for an independent Scotland. Paul Henderson Scott, for example, wanted it to be pacifist (not a view shared by the SNP’s defence spokesman Angus Robertson); Michael Fry to unleash neoliberalism; Joyce Macmillan to salvage social democracy; Gerry Hassan to think big and positive, and so on. The point, as the party frequently insisted, was that ‘Scots would decide’ what the New Scotland looked like, although it seemed unlikely all of them would be happy with the end result.” (Salmond: Against the Odds (2011), p. 412).

How to keep this ragbag coalition of (N/n)ationalist opinion together, with its divergent conceptions of what a just Scottish state would look like, while advocating a sufficiently potent and concrete conception of what Scottish independence would and could do, to justify the effort? I’ve written before about “being the cartographers of a new Scotland”, worrying about the proposition that the SNP should be regarded as simply “a vehicle to deliver independence, which will then afford an opportunity to choose what sort of state to choose to be”.

Not being in the envisaged “end phase” of gradualist Scottish nationalism, I worry that any strategies premised primarily on reassurance of the electorate just won’t cut it. Let’s be frank. Scottish independence is no small step for the nation to take, and strategies suggesting otherwise just won’t do. Put simply – and exceedingly tritely - if I go to sleep one night in the United Kingdom, and you tell me I will wake up to dawn in an independent Scotland and nothing substantial will have changed – you may feel reassured, but seriously, why bother?

I do recognise the tricky balance between spooking the electorate and making a concrete case for independence’s transformative potential. As I noted, this is an attempt to articulate a niggling anxiety – a tension if you like – rather than a programmatic critique of anyone. For myself, I can’t find much vividness in any overly-inclusive case for independence from the SNP in our political situation, basically amounting to delivering the bare autonomy to decide in future what sort of society and state we should have, with the SNP as neutral arbiters between the conflicting ideologies of its Frys and Macmillans. I don’t see how such a gingerly constructed case can be compatible with a serious-minded civic nationalism, premised on authentic, plausible and meaningfully elaborated social democratic political commitments.

I was struck by the enthusiasm generated by Gerry Hassan’s latest Scotsman column, “From the ‘How’ to the ‘Why’ of Scottish Independence”, with eleven specific areas addressed, encompassing poverty, inequality, defence, Europe, foreign affairs – and UK Tory government. This lively response was no doubt partly generated by folk who share Gerry’s range of political concerns and commitments, and find the vista thus painted to be a compelling one. In his recent speech in Inverness, Alex Salmond repeated the idea that the SNP must “take sides in Scotland as well as taking Scotland’s side”. Gerry’s article demonstrates the extent to which, I believe, Salmond’s logic must be extended to our thinking about independence. While a desire for inclusion is no bad thing, we haven’t got the luxury of the relaxed gradualist, well down his road towards independence. Not being in circumstances of “minimal difference” between Union and not, different expedients seem called for. It is insufficient for the SNP simply to take the side of an independent Scotland. We must also take sides, on what sort of Scotland that ought to be.

28 October 2011

This is the first post in the entire history of this blog that I've ever tagged "economics". The absence is significant rather than incidental. While I have been exposed to micro-economic theory rather more substantially, I don't feel coy about admitting that I have hitherto only entertained profoundly banal views on macro-economic questions and policy. For this, I can partly blame the limits of my legal education and the suspicions of my subsequent sociological one, but like many Scottish nationalists as the referendum approaches, I'm starting to feel the pinch of my inadequacies. One obvious implication of this is that my political nationalism is not driven by apprehensions of economic circumstance and possibility, but I accept without reserve that it is vital that supporters of independence are able to be literate exponents and critics of economic claims, if the Scottish people are to deliberate meaningfully on the nation's future.

In this sense of inadequacy, I strongly suspect that I am not alone in the broadly pro-independence body of opinion. It is timely, then, that Reform Scotland have published a book edited by Professor John Kay on Scotland's Economic Future. While I haven't yet gnawed my way through the whole thing, I've found the first half to be intelligibly composed and already feel a mite better-primed for conversations with folk I encounter around Oxford, making more-or-less fair points about the economic possibilities and challenges facing an independent Scotland, or Scotland-within-the-Union. I did enjoy a partisan chortle at this barbed footnote from Professor David Simpson's piece:

"It was suggested by the Brown Government that Scotland should be grateful to it for having provided RBS and HBOS with capital and debt guarantees. This is rather like a driver responsible for a major road accident seeking credit for taking the survivors to hospital."

The other chapters in the book range across a number of topics, including the banking sector, the financial provisions of the Scotland Bill, the underpinnings of the Government Expenditure and Revenue Scotland reports, including...

Professor Sir Donald Mackay: The framework, the authors and Home Rule

Professor John Kay: Is recent economic history a help?

Professor David Simpson: An environment for economic growth: is small still beautiful?

24 October 2011

Over at Bella Caledonia, I come in for a bit of flak from Mike Small, in a piece entitled: "We Are Not Men, We are Devo". It turns out that, quite unbeknownst to myself, I have been keeping bad company. The indictment reads in part:

"If you go and see a dentist he’ll tell you there’s something wrong with your teeth. If you go into a mobile phone shop you’ll be sold a new phone. Likewise if you read legally-focused bloggers (and) you end up see everything as ‘law’, as they they view legitimacy through that prism. But (as was commented last week) the people being tasered and beaten were on their own land in Dale Farm. Justice and the law aren’t the same thing. The issues of legitimacy has been thrown about all week, led by Baron Foulkes, John McTernan, Michael Moore and other unfortunates. Even Kenny Farquarson of SoS is clear, the mandate is with the Scottish Government.

As Tony Benn’s fond of saying “Democracy is always a struggle for justice against the powerful” in other words most of the rights we assume today as normal were once condemned as ‘outrageous illegalities’. And if you think the law is an equal footing for all reflect on today’s happenings and those of 25 years ago at the Battle of the Beanfield. But bloggers like Lalland Peat Worrier and Love and Garbage are aligned with John McTernan in this analysis: the Scottish Govt can’t hold a referendum because they’re not allowed. ‘Sovereignty is still with the UK’ as Baron Foulkes spluttered earlier. End of. So far so mechanistic."

While this is a serious misreading of my position on the legalities (and potential illegalities) of an independence referendum, it is worth paying a wee bit of attention to the characters and concepts Mike appeals to. They are familiar. Indeed, every post I have ever written, discussing the shoogly legal peg the independence referendum hangs from, has prompted some version of it.

Character one. Yours truly. A fustian legalist, tottering among tomes, Victorian precedents; arcane, abstract and uninvolved. This dusty, dreary conservative doesn't feel a single democratic throb in his attenuated frame. The only thing that could prompt a wiry pulse to spasm through his brackish veins being a nice point of law or a heartless legal problem. Prone to bark "do you have authority for that?", this irrelevant jurisprude has no interest in ardent political vocabularies and no commitments that are not legal commitments. In sum: a character of fumbling frigidity, living a political shadow-life as the puppet for the powerful, if he did but know it, or had the wit to see it.

Character two.The skeptical democrat. Thrusting, lively, popular. Vehement where the lawyer is verveless, he is convinced that all hearty, animal spirits should slam the archive doors in the pettifogger's whey face. A turner of tables and an upturner of petty laws, he is impatient with anything which smacks of process-serving cavil, which only serves to entangle the onward march of the People, of whom he is a passionate representative-spokesman. Poignant where the lawyer is prosaic, the skeptical democrat is also a charismatic fellow, and gathers friends, all keen to grind all law-tables into so much dust. Do not all charms fly, at the merest touch of cold legalities?

The only minor problem with this vivid division of personalities is that it is quite false, and the wheezing jurisprude of Mike's imagination dwells primarily there. He certainly doesn't compose pieces on this blog. Mike makes two discrete criticisms. Firstly, he suggests that my conception of legitimacy is wholly exhausted by dull legalities. Secondly, he suggests that I participate in John McTernan's thesis that the referendum is illegal. Full stop. This second argument can speedily be dispensed with as simply inaccurate. From my first piece on the subject onward, my commentary on the legality of the independence referendum has been an attempt to induce Nationalists to recognise that the legislative competence of any referendum Bill has the potential to face knotty legal challenges, and faces being waylaid in the courts while that competence is determined. Contra Mike's characterisation, I've actually outlined (I think convincing) arguments why the referendum would be legally competent, however, those arguments, even if ultimately convincing, would not prevent the legislation from being suspended by litigation. My more recentblogs have attempted to illustrate ways in which these legal problems could be solved in the course of the Scotland Bill's process through Westminster, to ensure that Holyrood does have the legal power to hold a referendum on Scottish independence, untroubled by the challenges of any potential litigant unionist.

As to Mike's first point of criticism, I have never argued that the limits on Holyrood's powers would justify casually deny a referendum, nor suggested that law answer all the demands of legitimacy, whatever the political and democratic situation in the country. I am concerned, however, that Mike's emotive democratic case for the referendum - politics trumps law - is that it seriously underestimates the bother and disruption which that legal uncertainty might generate in the meantime, and the damage it could do to nationalists' political ambitions. Firstly, the referendum Bill will have to get past the Presiding Officer in Holyrood. Thereafter, it may be subject to challenge on legal competence grounds by any member of the public. Do you seriously imagine that if the referendum was challenged in Scottish Courts, and a judge prevented the referendum being held until its lawfulness was determined, that the SNP would attempt to hold the referendum anyway? That it would try to order politically unaligned returning officers to get cracking, without a lawful mandate to proceed? I can't see that happening. Moreover, if there is a challenge to any Referendum Act, this may take an age to resolve. The recent AXA judgment from the UK Supreme Court on Holyrood's pleural plaques legislation gives some flavour of just how seriously the whole referendum timetable could be knocked off course by a single litigant, bent on stopping a referendum being held. What of Edwin Morgan's £1,000,000 independence legacy then, if the referendum falls a year, two years later than was originally planned?

You may well find uttering emotive appeals to democratic legitimacy satisfying - and I wouldn't disagree with you that it'd be a scandal if the referendum was waylaid and delayed - but you are deluding yourself if you think legal conundrums and challenges are of no consequence. Quite apart from regarding the strictures of the Scotland Act 1998 as the be-all-and-end-all, I'd insist that a serious, strategic political nationalist must be concerned with the practical delivery of the party's essential policy and take seriously the dismantling of any hurdles which may inhibit realisation of that policy. That is not to transform oneself into a heartless pettifogger, uninterested in the democratic self determination of Scots - but is surely what a calculating Nationalist, who wants to make sure that the referendum happens, must do.

To indulge in democratic rhetoric - and neglect real-world referendum strategies - is simply crackers. To be so uninterested in potential legal problems as to regard them as only intelligibly articulated by colourless legalists whose heads button up the wrong way - is seriously to underthink our predicament - and worse, is to enjoy the ardent vocabularies of self-determination more than the practical work of ensuring that that self-determination is made possible. If one seriously believes in the political legitimacy of a vote on Scottish independence - and I have no doubts about that myself - one surely has a duty to use one's noodle to bring it about. This may be less satisfying that composing sentimental texts declaring one's rights, but it is ridiculous to contend that to address legal practicalities is to allow oneself to be borne away by a cramped, legalistic and undemocratic conception of legitimacy. It may be an uncomfortable thought, but it seems absolutely clear to me that refusal to address dull legal realities has far more potential to ravage the cause of Scottish self-determination which Mike passionately and properly advocates.

18 October 2011

I'm struggling to think of the last time I heard anyone in Scottish politics say "I believe in free expression", without following it with a "but", or some other pious caveat, justifying illiberal legislation to put peoples' tongues in the vice, fetter their fingers, or otherwise curtail free speech. This is not a uniquely Scottish phenomenon, of course. The whole rhetoric of balancing rights against one another lends itself to this sort of discourse, where one can simultaneously avow your watery support for a range of competing propositions - free speech, protection of minorities from "hate", public order - and having recognised a range of entangled interests, and completed the relevant obeisances to all sides, unembarrassedly legislate, untroubled by dissonances as you obliterate the substance of liberty. All of which is done with a greasy air of self-justification and secular homily; a ludicrous pantomime parade of beetled brows and serious faces, as pompous moral vocabularies are dusted off to justify a range of reactionary reforms. Politicians assume grave airs to have their photos snapped by Amnesty International - all too happy to condemn repressive regimes abroad for jailing bloggers, writers, speakers - but seem to struggle to find the time even to shrug about domestic outrages.

Yesterday brought the news that Stephen Birrell, contemptible object though he is, entertainer of hackneyed, hateful and bigoted sentiments though he be, has been jailed for eight months for a religiously-aggravated breach of the peace, based on comments he left on a facebook group "Neil Lennon should be banned". If Birrell had decided to defend himself against the charges and been convicted, Sheriff Bill Totten informed him that he would have been sent down for a year's spell. Let's remind ourselves of what Birrell actually posted online. I refer to the fullest list I have been able to find, quoted by the Daily Record:

"Hope they all die. Simple. Catholic scumbags ha ha.""Proud to hate fucking tattie farmers. Simple ha ha." "They're all ploughing the fields the dirrty scumbags. FTP and the 'Tic. WATP. No Surrender.""Fuck the Fenian bastardsds who have fuck all else to do than talk shit."

Alex Massie has this coruscating piece on the case over at the Spectator, with which I thoroughly agree and would commend to you all. An excerpt:

"This is hardly the edifying stuff or evidence of a cultured mind. But we need not like, far less admire, Mr Merrill to observe that he issued no threats here. Not did he encourage anyone else to threaten anyone else or commit an act of violence. All has has done is express distaste for Celtic supporters in general and Roman Catholics in particular. We might well, indeed should, think less of him for this but even if these postings may well be said to be religiously and racially motivated they are still, in the end, only opinions. And expressing these kinds of opinions in Scotland now risks a spell in prison."

When Sheriff Totten indicated that Birrell should expect a "substantial custodial sentence" for writing these things, I asked: is Scotland is interested in free speech? The answer seems to be "no". Those who are minded to cheer this conviction, are you clear which precise aspects of these posts are to be regarded as criminal? Which of these statements would, could, should escape the sanction? I for one cannot immediately fathom which of these statements the sheriff was willing to regard as a breach of the peace, or whether Totten would hold that all four amount to "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community", which we should remember, is the legal definition of the offence of which Birrell has been convicted.

Surely it is not beyond the wit to come up with a range of circumstances in which folk might break down Birrell's acronym and write "Fuck the Pope", whether online, or uttering in person, or painting it on a placard. Within seconds, a quick search on the t'internet furnished this example (top right). Whether a robustly-worded protest against the actions or perceived actions of an individual pontiff, dissent from the Catholic hierarchy's line on homosexuality, on contraception or abortion, there are a range of situations in which the acronym Birrell used could reappear. What about vehement and indicting Protestantism, which sees the status of the Bishop of Rome as a grotesque subversion of true religion?

What about slagging off other canons of faith, however eccentric? Mormonism? Scientology? No doubt the tender rinds of these respective temples feel decidedly traduced if they are called a cult, or their cherished beliefs held up to general ridicule. No doubt both could make the case that they are troubled minority religions, and that permitting intensely disparaging sentiments to be expressed about them tends to lead to their dehumanisation and encourages their persecution. Even if our putative anti-Mormon or anti-Scientologist didn't actually threaten anybody with any violence, by advancing poisonous discourses about these faiths, he invites others to regard followers of Joseph Smith and L. Ron Hubbard as less deserving of human respect, and by this diminishment, more at risk of general mistreatment. If this is a plausible theory with respect to Birrell's hackneyed anti-Celtic, anti-Catholic sentiments, I see no way of avoiding following the logic with respect to different "religious" groups, and for that matter, with speech which tends to dehumanise disabled people, or our homosexual and transgendered fellow citizens, who we know are significantly more at-risk of experiencing violence and abuse in Scottish society.

But where does that sort of logic leave us? What sort of hobbled freedom remains to any of us, when the terminally offended are given privileged access to the forces of law enforcement, to have the terminally offensive banged up, simply for expressing their views? And just who should be entitled to have their feelings of being offended and mocked recompensed by our state law anyway? Imagine Birrell was a modern philosophical utilitarian who regards the deontological ethics of Immanuel Kant as an intolerable perversion of human thought, and who hates all Kantians with a burning, furious zeal for rejecting "the greatest happiness of the greatest number" as a basis for ethics. On his "Immanuel Kant should be banned" facebook group, he adds the following observations:

"Hope they all die. Simple. Kantian scumbags ha ha.""Proud to hate fucking Kantians. Simple ha ha." "They're all treating peopleas ends in themselves and never just as a means to an end, the dirrty scumbags. FIK ("Fuck Immanuel Kant) and the CI ("categorical imperative"). WATP. No Surrender.""Fuck the Kantian bastardsds who have fuck all else to do than talk shit."

It is no more immediately implausible that Birrell-the-anti-Kantian should be locked up for this, than Birrell-the-anti-Catholic. Consider yet another scenario. Say I'm a Scot who believes, foolishly, in Scottish ethnic integrity and racial distinctiveness, endlessly pursuing the theme in my conversations online and in my local pub. My ethnic nationalism finds expression in a deep-seated mistrust of anything tagged English, whom I enthusiastically loathe on a personal and collective basis. We need not go into the eccentric manias that might animate such hate, or explain its origins. Merely reformulate Birrell's remarks with an anti-English orientation, on a hypothetical "England should be banned" group.

"Hope they all die. Simple. English scumbags ha ha.""Proud to hate fucking English. Simple ha ha." "They're all drinking tea the dirrty scumbags. FMC ("Fuck Magna Carta"). WATP. No Surrender.""Fuck the English bastardsds who have fuck all else to do than talk shit."

English folk represent a significant minority in Scotland, and there is clear evidence that such Anglophobia can lead to abuse, bullying and even disgraceful physical assaults. Sauce for the goose is surely sauce for the gander. Are you all entirely content that my anti-English Scot share a cell with Birrell-the-anti-Catholic and Birrell-the-anti-Kantian? Perhaps you are, but if so, you are an authoritarian whose impulses are practically indistinguishable from far-flung regimes you likely purport to deplore, uninterested in liberty, whatever floppy occasional recognition you may give to the idea that we should be able to traffick in our ideas freely. I've only got a black laugh, a mordant hoot, for anyone who believes themselves to defend free speech, but who is willing fully to support the arrest, conviction and imprisonment of this character for these crushingly banal, commonplace and hackneyed phrases; an odious little creep banged up for echoing phrases nobody believes are particular to him, or originated with him. Birrell is a moronic driveller amongst a crowd of moronic drivellers. For anyone celebrating this prison term, your support for liberty of expression is utterly contemptibly spineless, unprincipled, phantasmal and your lifeless words in support of it entirely delusional. Scotland's shame indeed.

12 October 2011

If you douse the fuse, a powderkeg becomes little more than an damp squib, stubbornly resisting detonation. My melancholy peaty divinations and worst fears about the AXA General Insurance & Ors v. The Lord Advocate & Ors casehave - happily - proved comprehensively unfounded. There will be no political controversy today, ladies and gentlemen. Despite the boorach that was counsel for the Lord Advocate's oral submissions in defence of the Damages for Asbestos-Related Conditions (Scotland) Act 2009, the Scottish Government have carried the day in the UK Supreme Court, Holyrood's pleural plaque legislation surviving Lord Hope's searching judicial scrutiny. On account of my douce and parisimonious nature, I didn't hazard a shilling on the outcome, which it transpires was a cunning bit of caution.

Hope held that the Act was proportionate, and pursued the legitimate aim of "eliminating what are judged to be social injustices" [para 29]. He continued, ending with a (surprisingly forthright) endorsement of Holyrood's legislation:

33. "Can it be said that the judgment of the Scottish Parliament that this was a matter of public interest on which it should legislate to remove what was regarded as a social injustice was without foundation or manifestly unreasonable? I do not think so. There is no doubt that the negligence of employers whose activities were concentrated in socially disadvantaged areas such as Clydebank had exposed their workforce to asbestos and all the risks associated with it for many years. The anxiety that is generated by a diagnosis of having developed pleural plaques is well documented and it has been the practice for over 20 years for such claims to be met, albeit without admission of liability. The numbers of those involved, and the fact that many of them live in communities alongside people who are known to have developed very serious asbestos-related illnesses, contributed a situation which no responsible government could ignore." (my emphasis)

For those interested in constitutional law in general, and devolution in particular, perhaps more interesting is the Court's unflinching rejection of the idea that Holyrood's legislation could be challenged at Common Law, on grounds of unreasonableness, irrationality and arbitrariness. As Hope notes:

42. "...the question as to whether Acts of the Scottish Parliament and measures passed under devolved powers by the legislatures in Wales and Northern Ireland are amenable to judicial review, and if so on what grounds, is a matter of very great constitutional importance. It foes to the root of the relationship between democratically elected legislatures and the judiciary."

The Supreme Court (rather summarily) dismissed the possibility that Holyrood's Acts can be reviewed on these grounds, strongly affirming the powers of the Scottish Parliament. Said Hope:

49. "The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country's best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate."

Eyebrows will likely be raised (and are already climbing foreheads), if one is stout-hearted enough to read all the way down to paragraph 51 of Lord Hope's judgment, with its not-so-oblique reference to the SNP's majority in Holyrood in the characteristic, suggestive archness of judicial prose. Having discussed the judicial review of legislation emanating from Westminster, Hope asks, rhetorically:

"Can it be said, then, that Lord Steyn's endorsement of Lord Hailsham's warning about the dominant over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in devolved legislatures? I am not prepared to make that assumption. We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the Committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise".

That'll be a spanking for the Maximum Eck, and a dressing-down for MacAskill. Otherwise, a cheery day then, for those the 2009 Act sought to aid, and a dismal one for the insurers*, who have now been pretty comprehensively trounced in the Outer and Inner Houses of the Court of Session, and now down in London. As disappointed legal persons, AXA et al might consider lodging an application with the European Court of Human Rights. Given the backlog that institution labours under (presently numbering some 150,000 applications), even if their application was declared admissible by the European Court (and only 3% of cases are), years will pass before a further judgment from Europe on this case is even possible.

Like as not, but for those who must now take up their actions for damages under the 2009 Act, c'est finis.

UPDATE

*Specialist in scone monomania and occasional blogger on matters snowy and legal, loveandgarbage, has helpful emphasised the importance of paragraph 89 of the AXA judgment, from Lord Mance. To gloss the issues, with which I am no more than passingly familiar, Mance's logic suggests a way in which the insurers still may be able to escape liability for compensating pleural plaques sufferers for the negligence of their employers. It is one thing to say the 2009 Act is within Holyrood's legislative competence. As some contracts of insurance were likely made under English law rather than Scottish, there seems to be potential for insurers to get off the hook - while the employers would be left to shell out damages to pleural plaques sufferers themselves, unable to shake the pennies from their insurers. The pertinent section of Mance's concurring judgment reads in full:

89. Whether and how far there may be such a read-across is not a matter before the Supreme Court. The only copy of an actual insurance policy before the Supreme Court is a Combined Legal Liability Insurance Policy issued by AXA Insurance UK plc to John Laing and Son Ltd of Page Street, London NW7 2ER through C E Heath & Co (London) Ltd for three years commencing 1 January 1977, covering the insured “against all sums which the insured becomes legally liable to pay as damages in respect of bodily injury (including death or disease) sustained by an Employee arising out of and in the course of his employment or engagement by the Insured in the Business and caused within the Geographical Limits during the Period of Insurance”. The Geographical Limits were worldwide.

The respondents accepted that this policy is and others are likely to be subject to English, rather than Scottish, law. A Scottish Act will not on the face of it change the legal effect of an English insurance contract, even in Scotland. However, depending upon the particular policy language, the scope of the concept of bodily injury under a worldwide policy may respond to different conceptions of bodily injury in different parts of the world. Here, the question would be whether it would respond to a development or change, such as that introduced retrospectively by the 2009 Act, in the conception of bodily injury. I say no more about the answer, which may be elicited in another context or suit. Suffice it to say that insurers such as AXA have ample reason for direct concern about their forthcoming exposure.

1(1)Asbestos-related pleural plaques are a personal injury which is not negligible.

(2)Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.

Section four of the Act provides that these operative sections should be treated "for all purposes as having always had effect" (s4(2)). Represented by the Dean of the Faculty of Advocates, Richard Keen QC, the insurers have impugned the Act on a number of fronts. Despite losing their action in the Court of Session Outer and Inner Houses, the scuttlebutt suggests that the insurers feel confident that they will carry the UK Supreme Court with them, where they failed to convinced Lord Emslie and Lord President Hamilton. Having seen the advocacy of the representative of the Lord Advocate before the UK Court, I have already suggested that it will be something of a miracle if the Act survives the Supreme Court's scrutiny unscathed, and frankly, at this stage I'd be willing to wager ready money that the Court will at the very least strike down the Act's purported retrospective application.

Given the political stooshie which blew up after the Cadder and Fraser judgments were handed down, this judgment has much, much more explosive political potential. Rather than touching on an aspect of criminal procedure, or the fairness of the case prosecuted against one man, if adverse, the AXA judgment will amount to a judicial victory for vast insurers, on human rights grounds, made possible only by their significant wealth, contrary to a democratically-reached deliberation in which the insurers participated and were disappointed, overturning the reasoning of two Scottish Courts, which will deprive a number of weary, dogged and infinitely more sympathetic litigants with scarred lungs of any recourse, their disappointments undoubtedly sharpened by their apparent victory in Holyrood in 2009.

If that isn't a legal-political powderkeg in the present environment in Scottish politics, I don't know what is. We await the reasoning of Lords Hope, Brown, Mance, Kerr, Clarke, Dyson and Reed. On Wednesday.

7 October 2011

Imagine a primary school yard. It is play time, and the whole square is alive with cackling weans, making mischief. In the far corner, out of the teacher's eyeline, a lucrative little boy stands, surrounded by a gaggle of his impressed cronies. Striking attitudes, this muckle tyke has a gambler's heart, and has persuaded his schoolmates to enter into wagers with him, promising that to the victors go the poke of soor plooms. One, narrow-beamed but stout-hearted character is all too keen to put his five pence pieces to the touch to win or lose them all. The callow croupier explains the rules thus. He raises his two small fists, a number of coins apparently clutched in each. He opens his right paw, giving the slim fellow a look at the first count: only three coins. His left paw remains resolutely closed.

Fixing his risk-takers with a beady eye and assuming his best poker-face, the runt gravely pronounces "I'm holding ten coins". It is for the plucky gamer to decide whether this claim is "true or false", ignorant of what the left hand contains. If they spot a truth or lie, they get a sweetie; if they get it wrong, the miser keeps their hazarded coin. Mathematically speaking, the young dealer may not be running a gainful scheme, but he enjoys the frisson of cunning it gives him, and doesn't much care for the neon greenness of the soor plooms in any case. In this, he is assisted by his rodent's phizog, instinctively mistrusted by his comrades, who consistently call him a liar, only to lose their money on account of his unexpected, consistent truthfulness. The bell rings, class is reconvened, the losers fizz and our croupier's pockets clink with the happy sound of hoodwinked lucre.

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Yesterday, Holyrood's Justice Committee published its stage 2 report on the Offensive Behaviour at Football etc (Scotland) Bill, setting out its preliminary conclusions and summarising the concerns of witnesses lately examined before them. I'm exceedingly disappointed with it, not because it deviates from my own opinion (which it does), but because it makes the case for the legislation so poorly, and so partisanly. As you may recall, there are two main clusters of offences in the Bill. The first relates to "offensive behaviour at football", the second to "threatening communications". While encouraging increased clarity in the terms of section 1 of the Bill - "offensive behaviour at football" - the SNP members on the Committee concluded:

138. A majority of the Committee support the new offence of offensive behaviour at football. The majority believe that the Government has made the case that there are gaps in the law that do not enable the police and prosecutors to target offensive behaviour effectively.

Apparently without any sense of irony or dissonance, after a paragraph outlining the doubts of the non-SNP minority on the Committee, they have written:

140. The Committee would welcome clarification from the Lord Advocate as to whether section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is being used this season to prosecute cases of offensive behaviour at football matches. If so, we would also welcome an assessment from the Lord Advocate of the efficacy of that provision in obtaining convictions.

On the Bill's second major offence - that of threatening communications set out in section 5 - they make substantially the same point. The SNP majority is "prepared to support the proposal for a new offence of threatening communications" [para 218] and justify the Bill's provisions once again in terms of "gaps in the current law", despite the fact that:

217. ... not all Members are wholly convinced that the Scottish Government has made a clear case that those gaps exist, particularly in view of recent successful prosecutions under current law.

Certainly, it seems a queer sort of loophole, that sees proceedings brought, a conviction and potential prison term imposed, yet the SNP majority doggedly accept it. In the same ridiculous vein as their analysis of the Bill's offensive behaviour at football offence, despite the legal gaps they feel convinced exist to justify this legislation, the Committee ask the Scottish Government to provide:

220. ... further information to the Committee on whether and, if so, why, section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is not considered adequate to prosecute threatening online communications, despite a number of apparently successful recent prosecutions.

Even more tellingly (and one would hope, damagingly), in the same report, the Committee emphasises that it hasn't really looked into the offence of threatening or alarming behaviour (which includes all communication), which was only passed by the SNP government in 2010. Not to have done so is particularly strange, given the rationale for introducing that offence clearly relates to the Scottish Government's thesis that gaps in the law are being remedied by the Football Bill:

125. The Human Rights Consortium Scotland suggested that: "we need to understand if the problem is with the law or its application in Scotland. So far, there is insufficient evidence to demonstrate that the law is inadequate."

126. To some extent this has been answered in the debate played out before the Committee on the effectiveness of breach of the peace. We have had less opportunity to undertake scrutiny of the very new offence of threatening and abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which was conceived in response to concerns that the test for breach of the peace had become too narrow. (emphasis mine)

Although the ludicrousness and obvious partisanship of this analysis ought to be plain enough, there is no harm in outlining it in stark terms. The SNP majority on the Committee accept the Bill is substantially justified on grounds of "gaps in the law" on breach of the peace. They admit that the new SNP offence of threatening or alarming behaviour included in an Act of 2010 was passed primarily to solve the problem of the narrowing of the common law offence of breach of the peace, which is presently being used by Ministers to justify the new provisions of this Bill. Conscious of their past legislative intentions, any assessment of the current state of the law must surely require section 38 of the 2010 Act to be taken seriously into account. However, the Committee concedes that they have only cursorily considered the offence of threatening or alarming behaviour, and unabashedly admit ignorance of (a) whether this new offence is being used by prosecutors or (b) why the Government consider it inadequate, and the new threatening communications provisions of the Bill necessary, despite recent convictions. None of these doubts, uncertainties and ignorances about the current law and its application apparently disturb the SNP majority's blithe and general acceptance that the Bill's new offences are justified by "gaps in the law".

This is not to say that there are not other ways of justifying the new offences set out in the Football Bill - there are, some of which were suggested by Roseanna Cunningham and promoted by Dr Kay Goddall in their respective appearances before the Committee. Whatever one's view of the Bill, we are surely ill served by doltish scrutiny and embarrassingly craven, intellectually sloppy and caballing reports from SNP-dominated Committees of the Parliament, obviously at variance with the legal evidence and their own ignorance about existing offences beyond breach of the peace. At least the daft wee laddies contending for the soor plooms and guessing at the contents of a clenched fist were aware that they were hazarding guesses, and weighing up the croupier's authority and sincerity. In this case, the majority on the Committee speaks with their master's voice, appear to have failed to engage their brains, and risk making themselves look ridiculous by doing so.

5 October 2011

One of the reasons I'm such a bore about the Scotland Act 1998 (in addition to my own inveterate tendencies in that direction) is that perceptions of what Holyrood can and can't do will inevitably effect what Holyrood will and won't do. A bland saw if ever there was one, but there is, I think, a neglected point hiding within it. Sometimes, there is legislative will but the relevant powers are reserved. Sometimes one is tiptoeing along the line of reserved and devolved matters, or touching on EU law or fundamental rights, and trying not to lose one's balance and take a damaging and delaying tumble into the courts. Although we tend to associate Nationalists are being natural aggrandisers of their own jurisdiction, keen to collect any power over matters Scottish going begging - there is also the curious phenomenon of treating devolved matters as if they were reserved. One example, discussed on this blog, concerned the summer's News of the World scandal, and the Information Commissioner's Operation Motorman report. Although risking obnoxious and extended self-quotation, this excerpt articulates just the sort of thing I'm getting at:

Legislation in Westminster is by no means easy. However, its members and its government are at least mostly relieved of the difficulty of asking: is doing policy X within our powers at all? They enjoy a basic liberty of action.Not so, with Holyrood. To use a picturesque phrase sometimes deployed, the Scottish Parliament was not born free. The limits of the Scotland Act - and the way powers are implicitly granted rather than explicitly enumerated - call for a high level of legal sophistication if the full extent of the parliament's powers are to be understood. This can be particularly challenging if you stray outside the familiar, well-trodden areas of Holyrood legislation. Unfortunately, there are not many signs of such sophistication, either in the press, or on the benches of the parliament.

Paradoxically, as with press regulation, this limited understanding of the full extent of the Scottish Parliament's existing powers results in an SNP government and parliamentarians treating issues which are within their powers as being concerns properly limited to Westminster only. Alex Salmond issues statements of the sort quoted at the beginning of the piece, which leaves the profound but erroneous impression that he and his Ministers and the Scottish Parliament are fettered and tied. They can only sit back, pull constructive faces, demand better consultation with Westminster authorities - and wait for Sewel motions, which are passed on the nod. It is worth remembering what these legislative consent motions are all about. Conventional instruments rather than mandated by strict law, at their most basic, these motions are used where Westminster legislates concerning devolved matters. Although many pieces of legislation emerging from Westminster might concern commingled reserved and unreserved issues - when you see a Sewel Motion, the proposed Westminster Bill before you addresses, at least in part, devolved powers and consent is simply not solicited in areas reserved to the London Parliament.

This phenomenon popped into my napper as I read this piece by the Burd at Better Nation, talking about Holyrood's examination of Iain Duncan Smith's Welfare Reform proposals, debated later today on the following motion from Nicola Sturgeon:

"That the Parliament notes the Welfare Reform Bill that is currently being considered by the UK Parliament; regrets that the far-reaching proposals contained in the bill are being pursued against the backdrop of substantial cuts to welfare benefits announced in the June and October 2010 UK budgets; further regrets the impact that these cuts will have on some of the most vulnerable individuals and families in society and on the local authority and third-sector organisations committed to supporting vulnerable people, and calls on the UK Government to pursue a welfare system that is properly financed, simple to understand, lifts people out of poverty and makes work pay."

Hardly a ringing endorsement of the Her Majesty's government's approach to welfare reform, you might well think, but tone is more in sorrow than in anger. To regret is not to deplore, nor is to lament to oppose. How then is Sturgeon's motion to be understood? Does it suggest that a consent motion would be passed by the SNP majority - albeit with rhubarbs about the policies of the Westminster government - or insofar as devolved consent is required, imply refusal? Labour's Jackie Baillie is clearly interested in the same topic, and has proposed the following, flushing-out amendment to Nicola's motion, adding...

“... and is otherwise minded, subject to consideration by the appropriate committees, to oppose the forthcoming legislative consent motion pertaining to the Welfare Reform Bill.”

Baillie's amendment certainly puts the Scottish Government on the spot, and it'll be interesting how the SNP representatives vote on it. The fatal moment is not now, however. Like the Scotland Bill, the Welfare Reform issues fall to be considered by a committee of the Parliament, before a final decision is taken. The Bill itself is a dizzying mix of devolved and reserved matters. What if, as Baillie commends, Holyrood said - no thanks chums, we're not giving our consent? In strict law, Westminster is the sovereign parliament, able to exercise its will however it wishes, untrammelled and unfettered. In theory, the Tory-lead government could just inflict the whole scheme on us, consent or no consent, powers devolved or reserved. However, as many of my readers enthusiastically remind me - and here I very much agree with them - often, politics trumps law. The Burd rightly talks about the potential for a constitutional crisis; not a crisis in the constitution per se, which is tolerably clear, but a political scandal with constitutional ramifications: the dull thump of political discord, conflicting mandates, and differences of opinion. Although a subset of blimpish bloviators on the Tory benches - the priapic devotees of Westminster sovereignty - might conceivably call for such a stuffing if Holyrood rejected their Bill, the political trickiness of the thing is obvious. Perhaps most significantly, if such cavalier sensibilities prevailed, the commitments of the Sewell Convention - that Westminster won't pass Bills that provisions on devolved matters without first obtaining the consent of the Scottish Parliament - would be revealed as watery, insubstantial. "Standing up for Scotland" is a familiar Nationalist refrain. Nicola Sturgeon's assessment of Duncan Smith's reforms is hardly sympathetic, but is bedevilled by a certain gingerly-does-it passivity. The question to be asked of the SNP majority is, will they do more than oppose in word and concede in deed?

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“Witty, erudite, cultured and always bang on the money. Wouldn’t be surprised to learn that he's kind to animals and phones his mother every week as well. His picture is to be found both prominent and hole-ridden on my dartboard in consequence.” ~Richard Thomson, Scots and Independent

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.